California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BERNARDO CAMACHO,

Defendant and Appellant.

H043233

(Monterey County

Super. Ct. No. SS130724B)

I. Introduction

A jury convicted defendant Bernardo Camacho of first degree murder (Pen. Code, § 187, subd. (a);[1] count 1) and active participation in a criminal street gang (§ 186.22, subd. (a); count 2). As to the murder, the jury found true two special circumstances: that the murder was intentional and perpetrated by means of a drive-by shooting (§ 190, subd. (a)(21)) and that defendant intentionally killed the victim while defendant was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang (id., subd. (a)(22)). The jury also found true an allegation that defendant committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(5)) and an allegation that in the commission of the murder defendant personally discharged a firearm causing death (§ 12022.53, subd. (d)). Defendant admitted that he committed the crimes while on bail for another felony offense (§ 12022.1, subd. (b)). The trial court sentenced defendant to life without the possibility of parole (LWOP) with a consecutive term of 25 years to life for the firearm enhancement, a concurrent term of two years for the gang offense, and a consecutive term of two years for the bail enhancement.

On appeal, defendant contends (1) the trial court erroneously admitted hearsay and testimonial hearsay through the gang expert; (2) the trial court abused its discretion by admitting evidence of a codefendant’s murder conviction; (3) the prosecutor committed misconduct during argument to the jury; (4) there was cumulative prejudice from the trial court errors and prosecutorial misconduct; (5) this court should review confidential discovery records to determine whether additional material should have been disclosed to the defense; (6) the term for the gang offense should be stayed pursuant to section 654; (7) the drive-by shooting special circumstance is unconstitutional; and (8) the mandatory LWOP term imposed constituted cruel and unusual punishment. Defendant also argues that his trial counsel was ineffective for failing to make certain objections in the trial court.

The Attorney General concedes that the two-year concurrent term for the gang offense (§ 186.22, subd. (a); count 2) should have been stayed but contends the judgment should be otherwise affirmed. For reasons that we shall explain, we will order the judgment modified to stay the term for count 2 and affirm the judgment as modified.

II. Background

Defendant, a Norteño gang member, was convicted of killing six-year-old Azahel Cruz during a drive-by shooting. Defendant, who was the passenger in a car being driven by fellow gang member Eddie Pulido, was apparently aiming at Sureño gang members who were in a Salinas park. However, a bullet struck Cruz—who was inside his house—in the head. At trial, three former gang members testified about admissions defendant made to them about committing the shooting.

A. The Shooting

On March 23, 2010 about 6:00 p.m., police officers were dispatched to a residence on East Laurel Drive in Salinas. Six-year-old Cruz was lying on the kitchen floor in a pool of blood. A bullet had passed through Cruz’s brain and caused his death.

Cruz’s residence was next to Pocket Park, a hangout for Sureño gang members. The KK Market was on the opposite side of the park. Casings were found in front of the market. Surveillance video from the market showed a gold Honda pass by someone in a hoodie, who began to run. The passenger in the Honda was hanging out the window and looking back at the park. The Honda then went by in the opposite direction.

At the time of the shooting, Pulido’s stepfather owned a Honda like the one used in the shooting. Pulido drove the Honda regularly. At some point in 2010, Pulido took the Honda to San Diego; his stepfather never saw the Honda again.

Right after the shooting, a witness saw a group of males running from the park and jumping over a fence, and he saw something dropped in a bush. An officer later found a .380-caliber gun in the backyard of a residence next to the park. The casings found in front of the market were all from a nine-millimeter semiautomatic weapon and could not have been fired from the .380-caliber gun found in the yard.

Three days before the shooting, on March 20, 2010, Salinas Police Officer Gabriel Gonzalez had seen defendant and Pulido hanging out together—along with several other people—in Acosta Plaza, a known Norteño gang area. Defendant was wearing a black hat with a red brim. Others in the group were wearing red clothing.

At trial, Cruz’s mother testified that just before the shooting, Cruz had been eating a popsicle. He was shot as he was going to the kitchen to throw “what was left of it” into the trash.

B. Defendant’s Admissions

Defendant made admissions about the crime to three former gang members who testified at trial: Jerry Garcia, Jose Manzo, and Anthony Tavera. All three also testified about Norteño gang rules, customs, and symbols.

1. Testimony of Jerry Garcia

Jerry Garcia was a former Norteño gang member whose gang name was “Silent.” Garcia had been a member of the subset Salinas Acosta Plaza (SAP), which was associated with Acosta Plaza, a location about one minute away from East Laurel.

Garcia explained that Sureños are the enemy of Norteños. Norteños associate with the letter N, the color red, and the number 14. The SAP subset uses signs for the letters A and P. Garcia identified photographs of defendant throwing “AP” gang sings.

The rules of the Norteño gang, and of the SAP subset, include not shooting at little kids, not doing drive-by shootings, and not snitching to the police. The reason for the rule against drive-by shootings is to prevent the shooting of innocent victims. Shootings should be performed only from outside a vehicle.

Defendant was Garcia’s second cousin. In 2010, defendant was a member of the SAP subset. His gang name was “Nightmare.” Defendant would “represent” for the gang, meaning he would participate in shootings, robberies, and marijuana sales. Pulido, known as “Eddie Boy,” was also affiliated with SAP.

A day after the shooting of Cruz, Garcia was hanging out with defendant and some other cousins. Defendant was acting strangely quiet and keeping to himself. Defendant eventually said that he had been the shooter. He explained that he and Pulido had been driving by Pocket Park, where they had seen Sureños. They had gone back to shoot the Sureños and accidentally shot a little kid. Garcia suggested that defendant “leave to Mexico,” and defendant apparently did, because that was where Garcia next saw him.

Garcia claimed he had been jumped out of the gang in 2008, but he also admitted that in 2009, he was convicted of carrying a gun for the benefit of a gang. In 2012, Garcia was pulled over by police and told them about defendant’s statement, but Garcia said he would not testify. Then, in 2013, Garcia was arrested for gun possession. He pleaded guilty prior to defendant’s trial, entering into an “open disposition.” His plea agreement provided that if he helped find defendant and testified honestly at trial, the judge would consider those facts at sentencing. As part of the plea agreement, Garcia had been released from jail, and he was receiving money for housing and food at the time of trial.

Garcia had previously testified at defendant’s preliminary hearing. At that time, defendant did not have a “Fuck a snitch” tattoo on his neck, but he did at the time of his trial.

2. Testimony of Jose Manzo

Jose Manzo was a former Norteño gang member who had been a member of the Salinas East Market Street (SEM) subset. Manzo had dropped out in 2007 after he committed a crime in violation of gang rules.

Manzo reiterated some of the Norteño gang rules, including the ban on drive-by shootings. According to Manzo, if a Norteño gang member committed a drive-by shooting, his “career” with the gang would be over. Manzo described how gang incident reports are written up on kites (very small pieces of paper). An incident report might be written to provide a justification for a crime.

At the time of trial, Manzo was in custody; he had pleaded guilty to 17 felony offenses. He had initially been sentenced to 34 years but if he testified truthfully at defendant’s trial, he could get a sentence in the “low 20’s.”

Manzo had heard that defendant was in jail for killing a little kid, so he mentioned that to defendant during a jailhouse conversation. Defendant said, “[Y]eah, that’s what they got me for,” then described the incident. Defendant said “they” had been driving around looking for “scraps” when he thought he recognized someone. They turned around and asked the person, “Where you from?” The person responded that “they don’t bang,” but defendant said, “Fuck that, I know you’re a scrap,” and began shooting. Defendant also said something like, “This is Acosta Plaza.” After finding out that a little kid died, defendant said, “Fuck it. He shouldn’t a been in the way.”

In a subsequent conversation, defendant told Manzo that people were “tripping on him,” and he asked what Manzo thought would happen. Defendant expressed a similar fear of being attacked during another conversation with Manzo. Neither time did defendant deny having committed the shooting.

On another occasion, defendant got into a dispute with Manzo and some other inmates about what to watch on television. Defendant said, “You guys can’t tell me shit. . . . I’ll blast you like I did to that little punk.” Manzo believed it was wrong to kill a kid, and that it was worse for defendant to have expressed pride about the shooting. Thus, he decided to assault defendant, fighting him in the yard a few days later.

Manzo admitted he had committed prior armed robberies, pistol whipped two people under orders from the gang, committed a shooting, and had broken jail rules at least seven times.

3. Testimony of Anthony Tavera

Anthony Tavera was a former Norteño gang member who had been a member of the Watsonville Varrio Norteños (WVN) gang. Tavera had gone to prison and been promoted into the “northern organization” of the gang. Tavera explained that the Norteño gang had a structure that included youngsters, street leaders, regimented commanders, hermanos (the brothers), and cardinales (the highest level).

Tavera explained that Norteño gang members commit crimes to show their loyalty to the gang and to earn money for the gang. He reiterated the signs and symbols of the Norteño gang and the fact that Sureños (also known as southsiders) were the enemy of the Norteño gang.

Tavera testified that Norteño gangs are “very strict” with their rules, which include no drive-by shootings. A Norteño gang member who violates the gang rules will often try to “fix it” by doing anything he is told to do. Such a gang member may write an “incident report” in mini-writing on a kite to explain the incident involving the broken rule. The incident report will often go to the regiment commander, and it may be brought in or out of jail.

When a Norteño gang member breaks the rules and attempts to regain favor with the gang, he may be ordered to do “cleanup.” The “cleanup” may be committing an assault, helping with an assault, or writing an essay. Tavera himself had been put on “cleanup” after being convicted of having unlawful sexual intercourse with a minor in 2002. He was ordered to “cut somebody” in prison, two separate times, which led to him being housed in administrative segregation both times. Even after that, however, he was attacked by gang members and thus decided to drop out.

In August and September of 2013, Tavera was in custody with defendant. Defendant had a “Mongolian tail” haircut, which is intended to indicate that the person is a “Norteno warrior.” Tavera asked why defendant was in custody. Defendant, with “a little attitude,” said he was in for murder. Tavera noted he had heard that defendant had killed a little kid. In response, defendant said, “Fuck you, fuck that [little] kid . . . .” Defendant also said, “You guys are so worried about that little kid, that little kid shouldn’t have been there in the first place.”

Tavera also knew Pulido. Tavera had been housed near Pulido in the Monterey County jail, and Tavera had heard Pulido “cry every night” because of his case.

Tavera had not entered into a plea agreement in exchange for his testimony, but he had been placed in relocation housing and had been given money for food.

C. Defendant’s Jail Housing and Incident Report

When defendant arrived at the Monterey County jail in April 2013, he was placed in a solo cell temporarily and then moved to C pod. A few days later, defendant assaulted gang dropout Johnny Chavez and then asked to be moved to the J or K pod, both of which were for active Norteño gang members. Jail authorities allowed defendant to move after he signed a liability release. However, after a few days, due to “growing concerns” about a possible assault on defendant, jail authorities moved him again, to another dropout pod. After he was assaulted in that pod in September 2013, defendant was moved to another dropout pod.

In May of 2013, authorities searched the home of Vincent Garcia, a regiment commander for the Nuestra Familia in Monterey County. Over 300 kites were found. Two kites written by defendant contained an incident report about the Cruz shooting. Defendant noted he had been arrested for a robbery and possible murder charge in Tijuana and eventually transferred to Monterey County, where he had requested to be placed in C pod. Defendant indicated he had been “tripping on the situation of the murder, [in] which a little boy had been killed on Laurel Street in 2010.” Defendant provided details: “The way the little boy died was inside his house. Bullet struck his house and went through three different layers of wall. It was on accident. It was not intentionally that the little boy was ever in the scene. He was in his house.” Defendant indicated he wanted to “return” and that he hoped it was possible, noting that he was not a snitch or child molester and that he was “still active.” Defendant asserted that he wanted to “keep the cause alive.” Defendant also explained that he had been informed by other gang members that he needed to physically assault someone in order to get out of the jail housing for non-active gang members so he could return to active status. Thus, he had committed an assault.

Other kites found in Vincent Garcia’s residence were apparently written by people with more authority in the gang. One kite noted defendant’s name, gang nickname, and date of birth. It noted he was from SAP. The kite noted defendant had been housed with dropouts due to his crime of shooting a kid “on accident” and that defendant was “on freeze until further notice,” meaning he was not to engage in any gang activity. Another kite indicated the author believed defendant was willing to make amends to the gang.

D. Gang Expert Testimony

Salinas Police Officer Masahiro Yoneda testified as the prosecution’s gang expert. He discussed the Norteño gang subsets in Salinas, which include SAP and SEM. He explained that in the Salinas area, gangs use violence to gain respect; shooting a rival gang member earns a gang member “the highest form of respect.”

Officer Yoneda repeated some of the rules of the Norteño gang, such as the rules against child molestation, killing a child, and drive-by shootings. He explained that Norteño gang members answer to the Nuestra Familia prison gang. He noted that since gang members commit crimes, they will often end up in prison, where rule violations will “catch up to” them.

Officer Yoneda provided a history of the SAP gang. The gang initially was comprised of residents of Acosta Plaza, but that was no longer the case. SAP still claimed Acosta Plaza as gang territory, however, and SAP members continued to hang out there. Officer Yoneda confirmed that Pocket Park was a Sureño gang “hangout” in 2010.

During Officer Yoneda’s testimony, the prosecution introduced a certified copy of court records showing that Pulido had been charged with and pleaded guilty to murder, as a predicate offense to show a pattern of criminal gang activity. (See § 186.22, subds. (e) & (f).) Officer Yoneda described the facts underlying the conviction: “Mr. Pulido was involved in a homicide - - in a drive-by shooting at the Pocket Park on East Laurel Drive, resulting in the death of Azahel Cruz.” Officer Yoneda testified that Pulido was an SAP gang member.

The prosecution introduced evidence of four other predicate offenses during Officer Yoneda’s testimony. The first was Jerry Garcia’s 2009 conviction of firearm offenses with a gang enhancement. Officer Yoneda testified that at the time of the offense, Garcia was a gang dropout. He also testified about the facts of Garcia’s offense. Garcia was in a car with his girlfriend and one or two other people. Officer Anaya conducted a traffic stop and then searched the vehicle, finding a firearm that Garcia admitted to possessing.

Officer Yoneda next testified about court records showing that SAP member Jonathan Rizo was convicted of assault with a deadly weapon and firearm possession with a gang enhancement. Officer Yoneda described the facts leading to the convictions. Rizo had been in the company of three other known Norteño gang associates. Officer Mattocks had responded after a shooting was reported, and he had pursued a vehicle matching the description of the suspect’s vehicle, then found Rizo and a codefendant after a foot chase.

Court records showed that Diego Ramirez was convicted of assault with a deadly weapon with a gang enhancement. According to Officer Yoneda, this followed a shooting in a known Sureño gathering area. The shooting was preceded by a gang challenge. Officer Yoneda was not certain whether Ramirez was an SAP member.

Court records showed Alexis Aguilar, an SAP gang member, was convicted of murder with a gang enhancement. Officer Yoneda was “familiar with” with facts underlying the conviction. The victim was a Sureño gang member who lived in the Acosta Plaza complex. Aguilar asked the victim about a tattoo and told the victim’s son to leave, then shot the victim.

Officer Yoneda opined that the SAP Norteños had engaged in a pattern of criminal activity, that SAP gang members knew about the criminal activity, and that Norteños are a criminal street gang. He opined that both Pulido and defendant were gang members based on prior contacts they had with police and their prior convictions.

Pulido’s prior police contacts included the March 20, 2010 incident in which Officer Gonzalez had observed Pulido and defendant together. Pulido had another police contact on December 29, 2009, during which an officer found him in the company of another SAP gang member. On September 15, 2009, Pulido was contacted by two officers and told them his gang moniker was Eddie Boy.

Officer Yoneda’s opinion about defendant’s gang membership was based in part on his assault on another inmate in jail, which was preceded by an exchange of gang hand signals with other Norteños and followed by a demand to return to a Norteño pod. His opinion was also based on defendant’s gang tattoos, which included one stating “900 Block” (a reference to Acosta Plaza), one stating “Salas” (a reference to Salinas), one reading “MC” (a reference to Monterey County), and one reading “Fuck a Snitch.” Officer Yoneda explained that it is typical for gang members to get tattoos of their “place of origin.”

Defendant’s prior police contacts included the March 20, 2010 incident in which Officer Gonzalez had observed Pulido and defendant together in the company with other SAP gang members. On September 21, 2009, an officer contacted defendant, who was hanging out with three other people in Acosta Plaza. Defendant and one of his companions were wearing red shirts. On May 3, 2008, two officers again contacted defendant in Acosta Plaza. On February 8, 2008, an officer contacted defendant, who denied being a gang member but admitted he “hangs out with Nortenos.” On August 16, 2007, an officer contacted defendant after observing him running through Acosta Plaza. On July 27, 2007, an officer contacted defendant, who was on probation but said he had not “yet” been jumped in as a gang member. On November 6, 2006, an officer contacted defendant at school after defendant called another student a “scrap” (a derogatory term for Sureño gang members) and assaulted that student. On November 1, 2006, defendant was contacted near Salinas High School; he was wearing a red baseball cap and a shirt with a Huelga bird (a Norteño gang symbol) on it. On September 28 of an unspecified year, defendant was again contacted by an officer at Salinas High School, this time for wearing a 49ers’ shirt in violation of the school’s dress code policy, which banned “red sporting attire.”

Defendant’s prior criminal activity included an incident at a 7-Eleven store on October 9, 2009. Defendant entered the store and held a gun at the clerk. Defendant and two companions left with money they stole from the store. Officer Yoneda testified that this was a typical Norteño gang crime, because Norteños “tend to do robberies to earn money for the gang.” Also, it was significant that defendant committed the crime with two other people, since gang members “need someone to be there to bear witness” to their crimes. Still shots from the surveillance video taken during the offense were introduced into evidence.

Officer Yoneda testified that his opinion about defendant’s gang membership was also based on the fact that defendant had shot at Sureño gang members. He also discussed photos of defendant throwing gang signs and the kites defendant had written.

Given a hypothetical that mirrored the facts of this case, Officer Yoneda testified that in his opinion, that shooting was “for furtherance of the criminal street gang.” He explained, “It would definitely benefit [the gang] because it would raise the notoriety of that gang within the community, [and] it would create fear in rival gangs.”

III. Discussion

A. Gang Expert – Testimonial Hearsay

Defendant contends the trial court erroneously admitted hearsay and testimonial hearsay through the gang expert, Officer Yoneda. He specifies the following testimony: (1) Pulido’s involvement in a car stop with another gang member; (2) details about Jerry Garcia’s traffic stop, which led to his conviction of firearm charges; (3) details about the incident leading to Rizo’s conviction of assault with a deadly weapon; (4) details about the incident leading to Ramirez’s conviction of assault with a deadly weapon; (5) details of the incident leading to Aguilar’s conviction of murder with a gang enhancement; (6) details of defendant’s police contacts on September 21, 2009; May 3, 2008; February 8, 2008; August 16, 2007; July 27, 2007; November 6, 2006; November 1, 2006; and September 28 of an unspecified year. Defendant contends that he received ineffective assistance of counsel to the extent that his trial counsel failed to make a sufficient objection to this evidence at trial.

1. Proceedings Below

The prosecution’s motions in limine included a motion regarding gang evidence. In the motion, the prosecution asserted that the gang expert could state opinions based on numerous sources, including information from other police officers and from crime reports. The prosecution indicated it would seek to introduce seven predicate offenses and evidence of defendant’s gang activity that included his “prior contacts with law enforcement where associating with gang members.”

Defendant’s motions in limine included a motion to exclude or limit gang expert testimony that relied on inadmissible testimonial hearsay. Defendant noted that “[t]he issue of whether a defendant’s Sixth Amendment right to confrontation is violated by a gang expert’s reliance on testimonial hearsay” was pending before the California Supreme Court.

At a hearing on motions in limine, the trial court noted that an expert was “certainly . . . allowed to testify to . . . hearsay evidence.” The trial court indicated it would rule on any objections “at the time they’re made” and that it would be “happy to give a limiting instruction” regarding an expert’s reliance on hearsay.

2. Applicable Law

After the trial concluded in this case, the California Supreme Court decided People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). In Sanchez, the court held that “case-specific statements” related by a gang expert as the basis for the expert’s opinion constituted inadmissible hearsay, and that admission of some of the statements, including facts taken from police reports prepared by other officers, constituted “testimonial” hearsay under the Sixth Amendment. (Sanchez, supra, at pp. 670-671; see Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford) [testimonial hearsay is inadmissible unless the witness is unavailable or there was a prior opportunity for cross-examination].) The court explained that “[c]ase-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried” and are distinguished from “generally accepted background information.” (Sanchez, supra, at p. 676.) The court clarified that an expert may relate to the jury “case-specific facts asserted in hearsay statements” if the facts are “independently proven by competent evidence or are covered by a hearsay exception.” (Id. at p. 686.) The court disapproved its prior opinion in People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley) “to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules.” (Sanchez, supra, at p. 686, fn. 13.) The court also noted that because a jury “must consider expert basis testimony for its truth in order to evaluate the expert’s opinion, hearsay and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth.” (Id. at p. 684.)

3. Analysis

We agree with defendant that the record indicates Officer Yoneda related hearsay and testimonial hearsay to the jury when he testified about the facts underlying the predicate offenses and the facts about defendant’s and Pulido’s prior offenses and prior police contacts. The record indicates that Officer Yoneda’s testimony about the details of the predicate offenses was based on information in police reports—i.e., “statements about a completed crime, made to an investigating officer by a nontestifying witness.” (See Sanchez, supra, 63 Cal.4th at p. 694.) His testimony about the details of defendant’s and Pulido’s prior offenses and prior police contacts appears to have similarly been based on either police reports or field identification cards. (See id. at p. 672 [field identification cards, or “FI cards,” are “small report forms” that “record an officer’s contact with an individual”].) Thus, that testimony was inadmissible hearsay or testimonial hearsay. (See id. at p. 697 [declining to decide whether content of an FI card was testimonial].)

However, after carefully reviewing the record, we conclude that defendant was not prejudiced by the admission of Officer Yoneda’s testimony about the details of the predicate offenses and defendant’s and Pulido’s prior offenses and police contacts.

First, the details of the predicate offenses were not necessary to establish the requisite “pattern of criminal gang activity.” (See § 186.22, subds. (e) & (f).) Jerry Garcia testified about his own conviction, and certified copies of his conviction, as well as the convictions of Rizo, Ramirez, and Aguilar, were introduced into evidence. Those records of conviction were admissible as official records (Evid. Code, § 1280) and were nontestimonial. (See People v. Taulton (2005) 129 Cal.App.4th 1218, 1225 [records that are “prepared to document acts and events relating to convictions and imprisonments” are beyond the scope of Crawford].)

Similarly, it was not necessary to prove all four of the predicate offenses. The commission of only two offenses is required to show a “pattern of criminal gang activity.” (§ 186.22, subd. (e).) Also, the charged crime can be one of the two predicate offenses (Gardeley, supra, 14 Cal.4th at p. 625), and thus defendant’s commission of the murder could have been used as one predicate offense. Further, admissible evidence showed that Pulido and Jerry Garcia were also Norteño/SAP gang members. Jerry Garcia himself testified that he had been a Norteño gang member and a member of the SAP subset, and that although he had been jumped out of the gang in 2008, he had still been acting for the benefit of a gang when he was convicted of carrying a gun. Garcia also testified that Pulido was a member of the SAP subset. Thus, the evidence overwhelmingly established the requisite “pattern of criminal gang activity” even if we assume that Officer Yoneda’s testimony about the gang membership of Rizo, Ramirez, and Aguilar related testimonial hearsay to the jury. (§ 186.22, subd. (e).)

On this record, admission of any testimonial hearsay about the details of the predicate offenses was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)

Likewise, there was no prejudice from admission of Officer Yoneda’s testimony about the details of defendant’s prior police contacts. Although that testimony was relevant to show defendant’s gang membership, that testimony was insignificant in comparison to other evidence that established defendant was a Noreteño/SAP gang member. (See Yates v. Evatt (1991) 500 U.S. 391, 403 [under Chapman, “an error did not contribute to the verdict” if that error was “unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record”], disapproved on another point in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) The admissible evidence of defendant’s gang membership included Jerry Garcia’s testimony about defendant’s gang membership, gang name, and participation in gang activities; Manzo’s testimony about defendant’s admission to making a gang challenge and shooting at someone he believed to be a “scrap;” Tavera’s testimony about defendant’s Mongolian haircut and how such a haircut is intended to indicate that the person is a “Norteno warrior;” evidence that defendant requested to be moved to Norteño pods in jail; the kites found in Vincent Garcia’s residence, in which defendant indicated he wanted to remain “active” and “keep the cause alive;” defendant’s tattoos; and the photographs of defendant throwing gang signs.

The significant additional evidence of defendant’s gang membership distinguishes this case from Sanchez, in which the admission of testimonial hearsay was prejudicial error because “[t]he main evidence of [the] defendant’s intent to benefit [his gang] was [the expert’s] recitation of testimonial hearsay.” (Sanchez, supra, 63 Cal.4th at p. 699.) In light of the admissible evidence establishing that members of the Norteño gang (and, specifically, the SAP subset) had engaged in a pattern of criminal activity and the admissible evidence establishing that defendant was a member of the Norteño gang and the SAP subset at the time of the charged offense, no reasonable jury would have failed to convict defendant of the substantive gang offense or found the gang allegations untrue if Officer Yoneda’s challenged testimony had been excluded.

In sum, the admission of hearsay evidence through the gang expert, while violating Sanchez, supra, 63 Cal.4th 665, was harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at p. 24.)

B. Admission of Pulido’s Murder Conviction

1. Proceedings Below

When the prosecution introduced the certified records of Pulido’s conviction, the prosecutor asked if the records showed “the conviction of Edmundo Pulido for being the driver in this offense.” Defendant’s trial counsel objected, and the trial court ordered stricken “[t]he comment that Mr. Pulido was convicted of being the driver.”

Defendant’s trial counsel further objected that the records contained “factual recitations” about Pulido’s role, “which suggest that he’s the driver so he aided and abetted in the crime so he’s still a principal.” Defendant’s trial counsel noted that defendant was “the only [other] person that this jury knows is associated with that crime,” which implied “by deduction” that defendant was the shooter. Defendant’s trial counsel asserted that admission of the records would violate defendant’s confrontation clause rights “because it’s a statement essentially by Mr. Pulido,” who was not available for cross-examination.

The prosecutor argued that Pulido’s conviction records were admissible to provide proof of a predicate offense. He noted that Pulido’s “plea sheet” did not mention defendant. He argued that the records were not testimonial.

The trial court indicated it would not allow evidence of Pulido’s admission to being the driver in the shooting. However, the expert could testify generally about the facts underlying Pulido’s conviction.

Officer Yoneda then testified that one of the documents was “the information of the current offense of Mr. Edmundo Pulido and the defendant, the crime that they committed.” However, defendant’s trial counsel objected and the trial court struck that testimony. Officer Yoneda then testified that the document was “an information” regarding “a crime” by “the defendant.” Defendant’s trial counsel objected again and brought a motion for a mistrial.

The trial court denied the mistrial motion and indicated it would give the jury a curative instruction. Defendant’s trial counsel indicated he had no objection to the trial court informing the jury that Pulido and defendant were initially codefendants. The trial court then told the jury that an information is “a charging document” and that “n one charging document, [defendant] and Mr. Pulido were charged as codefendants. Meaning they were charged together. Mr. Pulido entered a plea and was sentenced to state prison.” The trial court further instructed the jury to disregard any of Officer Yoneda’s testimony regarding defendant’s participation in Pulido’s crime and reminded the jury that “defendant’s alleged participation, if any, is a question of fact that you as the jury will decide.”

Officer Yoneda then identified the court records as including “an information charging [defendant] and Mr. Pulido with this crime” and agreed that the records showed Pulido’s “plea to his involvement in this crime.” Officer Yoneda further testified that the crime was murder, and he described the underlying facts: “Mr. Pulido was involved in a homicide - - in a drive-by shooting at the Pocket Park on East Laurel Drive, resulting in the death of Azahel Cruz.”

During argument to the jury, the prosecutor told the jury, “Nightmare [defendant] and Eddie Boy [Pulido] were together when this happened. Both Acosta Plaza gang members. They were together three days before it on March 20th, 2010, hanging out in Acosta Plaza. [¶] And Eddie Boy, who is a Norteno as you heard, he was down for the cause, he was down for violence. He was in that drive-by shooting in the murder of Azahel. That was his Honda that we saw on that video. Eddie Boy pled guilty to that murder. Eddie Boy pled guilty to driving that Honda.” After defendant’s trial counsel objected that there was “[n]o evidence that [Pulido] was driving,” the trial court instructed the jury that it was the jury’s job to “decide what the facts are” and that “the attorney[s’] comments are not evidence.” The prosecutor then continued, “You heard Jerry [Garcia] tell you that Nightmare told him that Eddie Boy was driving. It’s Eddie’s car. He was the driver. . . . [A]ll the evidence points to Eddie Boy being the driver and Nightmare being the shooter.”

Defendant’s trial counsel argued to the jury that the prosecutor was “absolutely incorrect” when he stated that Pulido “pled to being the driver.” Defendant’s trial counsel asserted, “There’s no evidence of that. There’s no evidence that he pled to being the driver. He pled to murder. There’s no evidence he pled to being the driver.”

2. Analysis

Defendant first asserts that Pulido’s murder conviction was not relevant to the gang allegation. Defendant contends that under [i]People v. Zermeno (1999) 21 Cal.4th 927 (Zermeno), the Pulido murder conviction was not a valid predicate offense since Pulido was merely an aider and abettor. Defendant acknowledges that he did not specifically object to the admission of Pulido’s murder conviction as a predicate offense and he contends his trial counsel was ineffective for failing to make such an objection.

Even assuming this claim was not forfeited, it lacks merit. Defendant’s reliance on Zermeno is misplaced. In Zermeno, the defendant hit the victim with a beer bottle while another gang member prevented the victim’s friends from coming to his aid. (Zermeno, supra, 21 Cal.4th at pp. 931-932.) The Attorney General argued that “the combined conduct” of the defendant and the other gang member satisfied section 186.22’s requirement of two predicate offenses (Zermeno, supra, at p. 933), but the California Supreme Court disagreed, reasoning that there was “just one offense” (id. at p. 932). Here, the prosecution did not seek to use the current offense as two predicate offenses. The prosecution sought to use only Pulido’s offense, not defendant’s offense. The Pulido conviction was thus relevant to prove the gang allegation, and defendant’s trial counsel was not ineffective for failing to object to its use as a predicate offense.

Defendant asserts that even if Pulido’s murder conviction had “some relevance,” it should have been excluded under Evidence Code section 352 because its probative value was substantially outweighed by its prejudicial effect. Defendant again acknowledges that he did not raise an Evidence Code section 352 claim in the trial court, and he contends his trial counsel was ineffective for failing to do so.

To establish ineffectiveness, defendant must show his counsel’s representation fell below an objective standard of reasonableness and a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. (See Strickland v. Washington (1984) 466 U.S. 668, 686-687, 694 (Strickland).)

In asserting that the evidence of Pulido’s guilty plea was substantially more prejudicial than probative, defendant discusses People v. Leonard (1983) 34 Cal.3d 183 and People v. Cummings (1993) 4 Cal.4th 1233 (Cummings),[2] both of which found that the admission of a coparticipant’s conviction was error under Evidence Code section 352. Neither case considered a coparticipant’s conviction that was relevant as a predicate offense for a gang allegation, however.

We will assume that reasonable trial counsel would have objected under Evidence Code section 352. Even assuming the trial court would have excluded Pulido’s conviction on that basis, defendant fails to establish a reasonable probability that the result of his trial would have been different. (See Strickland, supra, 466 U.S. at p. 694.) Defendant’s own statements to Garcia established that he and Pulido committed the drive-by shooting together, and defendant also implicated himself in the shooting by making admissions to Manzo and Tavera. In addition, defendant did not dispute that he wrote the kites, which were strong evidence that he committed the shooting. Defendant’s flight and commission of a jail assault—in an apparent attempt to get back into the gang’s good graces after violating its rules against shooting children and committing drive-by shootings—provided additional evidence of his guilt. Further, any risk that the jury would use the Pulido conviction as evidence of defendant’s guilt was diminished by the trial court’s instruction telling the jury to disregard any of Officer Yoneda’s testimony regarding defendant’s participation in Pulido’s crime and reminding the jury that “defendant’s alleged participation, if any” was “a question of fact” for the jury to decide. Considering this instruction and “the totality of the evidence” (id. at p. 695), we conclude there was “overwhelming record support” for defendant’s conviction and that the admission of Pulido’s murder conviction did not “alter[] the entire evidentiary picture” (id. at p. 696), and therefore that defendant fails to show ineffective assistance of counsel based on his trial counsel’s failure to object pursuant to Evidence Code section 352.

Defendant also contends Tavera’s testimony about Pulido should have been excluded, and alternatively that his trial counsel was ineffective for failing to object to that testimony. Again, we find no ineffective assistance of counsel. Tavera’s testimony about Pulido crying about “his case” did not link Pulido to defendant or even to a murder case. Even if reasonable trial counsel would have objected that Tavera’s testimony was irrelevant, the admission of that testimony was not prejudicial as there is no reasonable probability that the result of his trial would have been different without that testimony. (See Strickland, supra, 466 U.S. at p. 694.)

C. Prosecutorial Misconduct

Defendant contends the prosecutor committed misconduct during argument to the jury. Specifically, he contends the prosecutor vouched for a witness, asserted facts not in evidence, shifted the burden of proof to the defense, referred to the clothing defendant wore at trial, and told the jury its duty was to convict and that jurors should report on holdout jurors.[3]

“A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence. [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 726.) When the claim of prosecutorial misconduct “is based upon ‘comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]’ [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1001 (Cunningham).)

“Under the federal Constitution, to be reversible, a prosecutor’s improper comments must ‘ “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.” ’ [Citations.] ‘ “But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citations.]’ [Citation.]” (Cunningham, supra, 25 Cal.4th at p. 1000.) Such conduct will be found prejudicial if there is a “reasonable probability that the jury would have reached a more favorable result absent the objectionable comments. [Citation.]” (People v. Sandoval (1992) 4 Cal.4th 155, 184 (Sandoval); see People v. Watson (1956) 46 Cal.2d 818, 836.)

“ ‘[A] claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury. [Citation.]’ [Citation.]” (People v. Tully (2012) 54 Cal.4th 952, 1010, fn. omitted (Tully).)

1. Vouching and Facts Not in Evidence

Defendant contends the prosecutor committed misconduct by telling the jury, during closing (rebuttal) argument, “I’ve never had a case with as good a kite as that.” The prosecutor made the challenged statement in response to the defense argument that “the kite is not enough” to show that defendant committed the shooting. The prosecutor noted that the defense had conceded that defendant wrote the kite, and he argued that an innocent person would not have written it.

According to defendant, the prosecutor’s statement constituted impermissible vouching. “t is misconduct for prosecutors to vouch for the strength of their cases by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it. [Citations.] Specifically, a prosecutor’s reference to his or her own experience, comparing a defendant’s case negatively to others the prosecutor knows about or has tried, is improper. [Citation.] Nor may prosecutors offer their personal opinions when they are based solely on their experience or on other facts outside the record. [Citations.]” ([i]People v. Huggins (2006) 38 Cal.4th 175, 206-207; see People v. Medina (1995) 11 Cal.4th 694, 758 [improper for prosecutor to tell jury that “ ‘no case I have ever seen’ had such overwhelming evidence”].)

Since defendant’s trial counsel did not object or request an admonition when the prosecutor made the challenged comment about the kite, we will consider defendant’s alternative claim that his trial counsel was ineffective.

Even assuming that reasonable trial counsel would have objected to the prosecutor’s comment and that the trial court would have sustained the objection and admonished the jury to disregard the comment, defendant fails to establish a reasonable probability that the result of his trial would have been different. (See Strickland, supra, 466 U.S. at p. 694.) The comment was brief and was made only in rebuttal to the defense argument that the kite did not amount to an admission of guilt. (See Tully, supra, 54 Cal.4th at pp. 1053-1054 [no prejudice from prosecutor’s brief remark in rebuttal to defense argument].) And the jury was instructed that the remarks of the attorneys—including, specifically, “closing arguments”—were not evidence. (See CALCRIM No. 222.) Further, the evidence of defendant’s guilt was essentially overwhelming, as it included multiple instances in which he confessed to committing the shooting. There is no reasonable probability that the result of his trial would have been different had defendant’s trial counsel objected to the prosecutor’s comment about the kite. (See Strickland, supra, at p. 694.)

2. Burden of Proof

Defendant contends the prosecutor misstated the law by telling the jury it could not speculate about evidence that appeared to be missing from the prosecution’s case, and that the prosecutor improperly argued that defendant was guilty because he did not “affirmatively present evidence showing otherwise.”

“ ‘t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]’ [Citation.]” ([i]People v. Hill (1998) 17 Cal.4th 800, 829-830 (Hill).)

Defendant’s argument pertains to remarks the prosecutor made in both his opening and closing (rebuttal) argument. In his opening argument, the prosecutor talked about the informants and argued that they were credible. The prosecutor asserted that the defense was going to argue that the informants were not credible because they were “just testifying to get a deal.” The prosecutor asserted that the defense might also try to argue that defendant was accused of the murder in “a rush to judgment” because the police “had to get somebody for this tragic crime.” The prosecutor noted all the investigative resources that had gone into the case but acknowledged that there was no “scientific evidence,” such as fingerprints from the bullet casings or DNA from the kite. The prosecutor then argued, “Let me tell you something, if that evidence was there, you would have heard it. You would have heard it from both sides, trust me.” Defendant’s trial counsel objected, “Shifts the burden,” but the trial court overruled the objection.

The prosecutor continued his argument, predicting the defense would ask the jury “where is all that other evidence” and would try to “play off” the jury’s fear that there was evidence that the jury was not seeing. The prosecutor urged the jury to “make sure” the defense had evidence supporting its arguments and to “not let them play off your fear as to what is not here.” The prosecutor told the jury, “You cannot speculate, and . . . you must look at what’s reasonable in light of all the evidence that was presented to you. Because if they get up here and they ask you to speculate, that’s not reasonable doubt.” The prosecutor told the jury that any reasonable doubt must be “based on the evidence in this case.” There was no defense objection during these comments.

During closing (rebuttal) argument, the prosecutor asserted that Jerry Garcia, Manzo, and Tavera were all credible despite being gang members who had committed serious crimes and “entered into deals.” After reiterating that the three informants had “told the truth,” the prosecutor argued, “There’s no evidence to prove otherwise. Where is that evidence? Where is that evidence? There’s no evidence to prove otherwise.”

Defendant’s trial counsel objected: “Shifting the burden.” The trial court overruled the objection, but told the jury, “The burden is on the People. The defense doesn’t have a burden in this case. Only the People have a burden, and it’s beyond a reasonable doubt.” Defendant’s trial counsel noted that the prosecutor had been turned towards the defense table when making the previous statements.

The prosecutor continued his argument: “Where is that evidence? It’s not here. [Defendant’s trial counsel] talks about all these things that could have been done. They have just as much of a right to test every single piece of evidence in this case as the prosecution. And let me tell you like I told you earlier, if it was there, you would’ve heard it. You would’ve heard it. It would have been presented to you.”

The instant case is distinguishable from Hill, supra, 17 Cal.4th 800, on which defendant relies. In Hill, the prosecutor reminded the jury that reasonable doubt meant “ ‘you have to have a reason for this doubt. There has to be some evidence on which to base a doubt.’ ” (Id. at p. 831.) After a defense objection was overruled, the prosecutor reiterated, “ ‘There must be some evidence from which there is a reason for a doubt. You can’t say, well, one of the attorneys said so.’ ” (Ibid.) The California Supreme Court characterized the challenged remarks as “somewhat ambiguous” (ibid.) and noted that the prosecutor “may simply have been exhorting the jury to consider the evidence presented, and not attorney argument, before making up its mind,” which would have been permissible (id. at p. 832). Ultimately, the California Supreme Court found it was “reasonably likely [the prosecutor’s] comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt.” (Ibid.) Because “her statements could reasonably be interpreted as suggesting to the jury she did not have the burden of proving every element of the crimes charged beyond a reasonable doubt,” and it appeared she “was claiming there must be some affirmative evidence demonstrating a reasonable doubt,” the court concluded the prosecutor had committed misconduct. (Id. at p. 831.)

In this case, there is no reasonable probability that the prosecutor’s comments, taken in context, could have been understood as suggesting that defendant had the burden of proving a reasonable doubt as to his guilt.

First, the prosecutor’s remarks about how “if that evidence was there, you would have heard it” acknowledged that some jurors might have wondered why the prosecution had not presented any scientific evidence such as DNA or fingerprints. The prosecutor was candidly admitting that the prosecution had no such evidence and acknowledging that the defense would point to the lack of that evidence as a weakness in the prosecution’s case. The prosecutor was not arguing or suggesting that the defense had the burden of producing such evidence. Similar, when the prosecutor told the jury, “You would have heard it from both sides, trust me,” the prosecutor was simply noting that if there was scientific evidence favoring the defense, it would likely have been presented by the defense. “[A] prosecutor is permitted to comment on the state of the evidence and the defendant’s failure to call a logical witness.” (People v. Bryant (2014) 60 Cal.4th 335, 387 (Bryant).)

Second, the prosecutor did not improperly shift the burden of proof or misstate the law when he urged the jury to “make sure” there was evidence supporting the defense arguments, told the jury not to “speculate,” and asserted that any reasonable doubt must be “based on the evidence in this case.” The prosecutor was properly “exhorting the jury to consider the evidence presented, and not attorney argument, before making up its mind.” (Hill, supra, 17 Cal.4th at p. 832.) Considered in context, it is not reasonably probable that the prosecutor’s remarks would have been construed as suggesting that the defense could not rely on the state of the evidence or the prosecution’s failure to prove its case.

Third, the prosecutor did not commit misconduct by arguing that there was no evidence to show that Jerry Garcia, Manzo, and Tavera had not been truthful. The prosecutor’s rhetorical questions (“Where is that evidence? Where is that evidence?”) were responsive to the defense argument about the credibility of the three informants and properly focused on the evidence at trial, which included extensive cross-examination of the informants. Moreover, when the prosecutor made those remarks, defendant’s trial counsel objected and the trial court reminded the jury that the People had the burden of proof and that there was no burden on the defense. The trial court’s admonition adequately addressed any possible impropriety. (See Tully, supra, 54 Cal.4th at p. 1046.)

Finally, the prosecutor did not improperly shift the burden of proof when he argued that the defense had “just as much of a right to test every single piece of evidence in this case as the prosecution” and that if certain evidence “was there,” it “would have been presented to you.” The prosecutor was responding to the defense arguments about the lack of scientific evidence, not suggesting that the defense had the burden of producing such evidence. It was permissible for the prosecutor to assert that if there was scientific evidence favoring the defense, it would have been presented by the defense. (See Bryant, supra, 60 Cal.4th at p. 387.)

3. Defendant’s Clothing

Defendant contends the prosecutor committed misconduct by telling the jury to “look at the red shirt” defendant was wearing at trial and implying that defendant was continuing to participate in gang activity or trying to get back into the good graces of his former gang.

The prosecutor made the challenged statement during his closing (rebuttal) argument. The prosecutor had just argued that the kite reflected that defendant wanted to continue to be part of the Norteño gang. He argued that defendant still wanted to be part of the gang: “I mean look at the red shirt he’s wearing today. What’s that saying? What is that saying as he sits there with a red shirt on today in court? Kind of like a ‘fuck a snitch’ tattoo on your head.”

Defendant’s trial counsel asked to approach, and an unreported bench conference was held. The prosecutor then continued his argument, again comparing defendant’s shirt to his “fuck a snitch” tattoo. The prosecutor argued, “Now, he had a choice to wear a different shirt, but he chose to wear red.” Defendant’s trial counsel objected, “Your Honor, that’s untrue.” The trial court stated, “Stop. The defense attorney brought the shirts and provided the shirts for [defendant] to wear. Move on.” The prosecutor continued, “We know what it means. It’s a sign.”

The trial court later instructed the jury “to disregard the fact that [defendant] is wearing a red shirt today. You are not to consider that fact or discuss that fact for any reason. [¶] Neither attorney did anything improper in taking their respective positions on this topic. However, because [defendant] had no choice in his clothing, you cannot consider that fact for any reason and it is to be disregarded in its entirety.”

It is improper for a prosecutor to comment on a defendant’s “courtroom demeanor.” (People v. Boyette (2002) 29 Cal.4th 381, 434 (Boyette).) Such comments can “ ‘infringe[] on the defendant’s right not to testify.’ ” (Ibid.)

We agree with defendant that the prosecutor’s remarks about his red shirt were improper because the remarks referenced facts not in evidence and infringed on defendant’s right not to testify. As defendant’s trial counsel pointed out and as the trial court instructed the jury, there was no evidence that defendant chose to wear a red shirt at trial and no evidence he did so in order to show allegiance to the Norteño gang, since his clothing was provided by his trial counsel. However, particularly in light of the trial court’s admonitions to the jury, which we presume the jury followed (see Boyette, supra, 29 Cal.4th at p. 436), the prosecutor’s improper comments do not require reversal. The comments did not “ ‘ “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process,” ’ ” (Cunningham,supra, 25 Cal.4th at p. 1000) and on this record, which contained overwhelming evidence of defendant’s gang membership and desire to be back in the good graces of his gang, there is not a “reasonable probability that the jury would have reached a more favorable result absent the objectionable comments. [Citation.]” (Sandoval, supra, 4 Cal.4th at p. 184.)

4. Jury’s Duty and Reporting Holdout Jurors

Defendant contends the prosecutor committed misconduct by telling the jury that the judge needed to know if there was a juror who was not following the law during deliberations.

At the end of the closing (rebuttal) argument, the prosecutor told the jury, “Your job as jurors is to focus only on the evidence that is here, and not speculate as to what’s not here. [¶] What the defense is hoping for is that there’s just one juror who’s not deliberating, there’s just one juror who is not following the law.” Defendant’s trial counsel objected, saying, “It’s their decision who votes which way,” and noting, “The standard is not one. It could be all 12.” The trial court responded, “That is correct,” and indicated the prosecutor should continue his argument.

The prosecutor then argued, “If there’s one of you who is not following the law in doing your duty, the judge needs to know about it. If there’s one of you who is not doing your duty, the judge needs to know about it.”

According to defendant, the prosecutor’s comments “convey[ed] to the jurors that dissent could be prosecuted.” We find no reasonable likelihood that the jury construed the complained-of remarks in such a manner. (See Cunningham, supra, 25 Cal.4th at p. 1001.) The prosecutor told the jurors to tell the judge about any juror who was not following the law; these remarks did not suggest that the judge would report such a juror to the prosecution or that a juror’s failure to follow the law constituted a crime.

The cases defendant relies on are distinguishable. Unlike in United States v. Young (1985) 470 U.S. 1, the prosecutor here did not tell the jury that he believed the jury would not be following the law if it acquitted defendant. (See id. at pp. 5-6, 18.) And unlike in People v. Sanchez (2014) 228 Cal.App.4th 1517, the prosecutor did not indicate that anyone who failed to vote for guilt was gullible or naïve. (See id. at pp. 1522-1523.) Here, the prosecutor’s comments focused on the possibility that a juror would refuse to deliberate; he did not indicate that a juror would be wrong in voting to acquit after reviewing the evidence and participating in deliberations.

Defendant also discusses People v. Engelman (2002) 28 Cal.4th 436 (Engelman), in which the California Supreme Court criticized CALJIC No. 17.41.1, an instruction that “inform[ed] jurors at the outset of jury deliberations that ‘should . . . any juror refuse[] to deliberate or express[] an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation.’ (CALJIC No. 17.41.1 (1998 new) (6th ed. 1996).)” (Engelman, supra, at p. 439.) The California Supreme Court found that the giving of the instruction was not error, but nevertheless directed that the instruction no longer be given because it “create[d] a risk to the proper functioning of jury deliberations.” (Id. at p. 449.) Pertinent to the issue in the present case, the court noted, “Jurors should not needlessly be encouraged to be on the alert for refusal to deliberate or for other undefined failings on the part of their fellow jurors in the deliberative process.” (Id. at p. 447.)

Here, when the prosecutor encouraged jurors to tell the judge if a fellow juror was not deliberating, he did not commit misconduct. Although Engelman indicated that trial courts should no longer give an instruction to that effect, the Supreme Court found it was not error for jurors to be advised to tell the judge if a juror was refusing to deliberate. (Engelman, supra, 28 Cal.4th at p. 449.) And in People v. Barnwell (2007) 41 Cal.4th 1038, the court found no prosecutorial misconduct where the prosecutor suggested, during voir dire, that jurors had such a duty. (Id. at p. 1055.) Moreover, the jurors in this case were specifically instructed that they were required to “follow the law” (see CALCRIM No. 200) and that they had a “duty to talk with one another and to deliberate in the jury room” (see CALCRIM No. 3550). The prosecutor’s comments reinforced these requirements. The prosecutor’s suggestion that jurors report any juror who was refusing to deliberate did not carry the weight of a more formal trial court instruction, and the jury was specifically told to follow the court’s instructions if they conflicted with “the attorneys’ comments on the law.” (CALCRIM No. 200.)

5. Due Process Argument

Defendant contends the prosecutorial misconduct violated due process because it was a “pattern” and “occurred in quick succession in the rebuttal argument,” which deprived the defense of an opportunity to respond. However, we have found only two objectionable comments by the prosecutor: his statement about the kite being better than kites he had seen in prior cases, and his comments about defendant’s red shirt. This is not a case in which there was a pattern of prosecutorial misconduct. (Cf. Hill, supra, 17 Cal.4th at p. 829 [prosecutorial misconduct consisted of a “mountain of deceit and unethical behavior”].) In other words, this is not a case in which the prosecutor committed errors that “ ‘ “so infect[ed] the trial with unfairness as to make the resulting conviction a denial of due process.” ’ [Citations.]” (Cunningham, supra, 25 Cal.4th at p. 1000.)

D. Cumulative Prejudice

Defendant contends there was cumulative prejudice from the trial court errors and prosecutorial misconduct. (See Hill, supra, 17 Cal.4th at p. 844 [“a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error”].)

We have found that Officer Yoneda improperly related hearsay and testimonial hearsay to the jury—the facts of the predicate offenses, the facts about defendant’s prior offenses and police contacts, and the facts about Pulido’s involvement in a vehicle stop with another gang member—but we have found that error harmless beyond a reasonable doubt because the details of the predicate offenses were unnecessary and there was significant additional evidence of defendant’s gang membership. We have assumed that a reasonable attorney would have objected to the admission of documents from Pulido’s murder conviction but found no reasonable probability that exclusion of that evidence would have resulted in a different outcome because of the strong evidence of defendant’s guilt and the trial court’s admonition that Pulido’s conviction was not evidence of defendant’s guilt. We have found that the prosecutor made two objectionable comments—about the kite being better than kites he had seen in prior cases, and about defendant’s red shirt indicating that defendant was still trying to show that he was a gang member—but we found that neither comment was prejudicial and no pattern of prosecutorial misconduct.

Our Supreme Court has noted that a defendant is not entitled to “a ‘perfect’ trial,” but that he or she is entitled to a trial “in which his [or her] guilt or innocence was fairly adjudicated.” (Hill, supra, 17 Cal.4th at p. 844.) In Hill, reversal was required due to the cumulative effect of “constant and outrageous” prosecutorial misconduct (id. at p. 845) and numerous trial errors, including: shackling the defendant in front of the jury; allowing a bailiff to remain on duty in the courtroom after he testified, without any jury admonishment (id. at pp. 842-843, 846); and failing to instruct the jury that the felony-murder special circumstance required an intent to kill (id. at pp. 843, 846). Considered together, these errors “created a negative synergistic effect, rendering the degree of overall unfairness to defendant more than that flowing from the sum of the individual errors.” (Id. at p. 847.)

The instant case did not involve “constant and outrageous” prosecutorial misconduct. (Hill, supra, 17 Cal.4th at p. 845.) The jury in this case was not misinstructed on the elements of any offense or allegation. Much of the challenged evidence was cumulative to other evidence of defendant’s gang membership and commission of the shooting. While not “a ‘perfect’ trial,” the record shows this was a trial in which defendant’s guilt was “fairly adjudicated.” (See id. p. 844.) Thus, reversal is not required even considering the cumulative effect of the errors and assumed errors.

E. Records Review

Defendant contends this court should review the sealed material from the in cameral hearing held on January 6, 2015 to determine whether additional records should have been disclosed to the defense.

On December 30, 2014, defendant moved for discovery of information regarding material informants. The prosecution filed a response asserting that due to concerns for witness safety, it should not be ordered to disclose the names of its informants until near the time of trial. On January 6, 2015, following an in camera hearing, the trial court found good cause for delayed or restricted disclosure of the confidential informants’ identifying information. (See § 1054.7.)

On March 4, 2015, the trial court ordered “[a]ll outstanding discovery” disclosed. The trial court noted that the prosecution could have a few additional days to make arrangements for the safety of the confidential informants.

“A defendant has a ‘right to the names and addresses of prosecution witnesses and a right to have an opportunity to interview those witnesses if they are willing to be interviewed.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 458, italics omitted (Panah).) However, discovery of a witness’s identifying information may be limited out of concern for the witness’s safety if “good cause is shown.” (§ 1054.7.) “ ‘Good cause’ is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.” (Ibid.) Protective orders made under section 1054.7 are subject to review for abuse of discretion. (Panah, supra, at p. 458.)

The Attorney General has no objection to our reviewing the sealed transcript of the January 6, 2015 in camera hearing, and we have done so. We find no abuse of discretion in the trial court’s finding of good cause to delay disclosure of the confidential informants’ identifying information.

F. Count 2 – Section 654

Relying on People v. Mesa (2012) 54 Cal.4th 191 (Mesa), defendant contends the two-year concurrent term for the gang offense (§ 186.22, subd. (a); count 2) should be stayed pursuant to section 654[4] because he was also punished for the murder—i.e., “the crime he committed in furtherance of the gang.” The Attorney General agrees that under Mesa, the term for count 2 should be stayed, and we find the concession appropriate.

Mesa held that section 654 prohibits punishing a defendant for a substantive offense if that offense is the felonious criminal conduct underlying a gang participation conviction under section 186.22, subdivision (a). (Mesa, supra, 54 Cal.4th at p. 201.) Here, as the Attorney General concedes, the shooting was the basis of the allegation that defendant promoted, furthered, or assisted felonious criminal conduct by members of his gang. Thus, section 654 requires that the term for count 2 be stayed.

G. Constitutionality of Drive-By Shooting Special Circumstance

Defendant contends the drive-by shooting special circumstance (§ 190.2, subd. (a)(21)) is unconstitutional because it does not narrow the class of defendants who are eligible for that special circumstance. He contends the elements of first degree drive-by murder[5] and the drive-by shooting special circumstance[6] are “virtually identical where the defendant is the actual killer,” and that without a “material distinction,” the drive-by shooting special circumstance violates the Eighth and Fourteenth Amendments.

Defendant acknowledges that the California Supreme Court has rejected a similar argument with respect to the felony-murder special circumstance. (See People v. Gamache (2010) 48 Cal.4th 347, 406 (Gamache); § 190.2, subd. (a)(17).) Defendant also acknowledges that People v. Rodriguez (1998) 66 Cal.App.4th 157 (Rodriguez) rejected his claim regarding the drive-by special circumstance. Anticipating this court will follow those cases, defendant indicates he is raising this issue primarily to preserve it for federal review.

The Attorney General asserts that defendant has forfeited his challenge to the drive-by shooting special circumstance because he did not object at sentencing. Defendant asserts that the forfeiture rule does not apply because his claim presents a “pure question of constitutional law” and because an objection would have been futile in light of the above-mentioned case authority.

The Attorney General also asserts that defendant lacks standing to challenge the drive-by special circumstance because the jury found the murder to be premeditated and deliberate—i.e., it did not find him guilty of first degree murder based on a drive-by shooting theory. The Attorney General also points out that the jury also found true a second special circumstance, such that defendant would have received an LWOP sentence even without the drive-by shooting special circumstance. Defendant asserts that he has standing because the verdict form does not show whether the jury found him guilty of first degree murder based on a premeditation/deliberation theory or based on a drive-by shooting theory.

We will assume, arguendo, that defendant may challenge the drive-by special circumstance, and we will further assume that the constitutional requirements that apply to special circumstances used to impose the death penalty also apply when a special circumstance is used to impose an LWOP sentence. (See Maynard v. Cartwright (1988) 486 U.S. 356, 362 [a state must provide a “principled means” for distinguishing between those who are eligible to receive the death penalty and those who are not].) We agree with the Rodriguez court that the drive-by shooting special circumstance does not violate the federal constitution “simply because it duplicates the elements” of first degree murder by drive-by shooting. (Rodriguez, supra, 66 Cal.App.4th at p. 164.) As the Rodriguez court noted, similar claims have been rejected by both the United States Supreme Court and the California Supreme Court. (Ibid.) For instance, in Lowenfield v. Phelps (1988) 484 U.S. 231 (Lowenfield), the court upheld a special circumstance that required “ ‘the offender knowingly created a risk of death or great bodily harm to more than one person’ ” in a case where the defendant’s first degree murder conviction was based on a “ ‘parallel’ ” finding that he had “ ‘a specific intent to kill or to inflict great bodily harm upon more than one person.’ ” (Id. at pp. 243-244; see also People v. Edelbacher (1989) 47 Cal.3d 983, 1023 fn. 12 [under Lowenfield, it would be “meritless” to argue that “the lying-in-wait special circumstance is constitutionally infirm because it duplicates an element of first degree murder”]; Gamache, supra, 48 Cal.4th at p. 406 [noting repeated rejection of claim that felony-murder special circumstance fails to adequately narrow “the pool of those eligible for death”].)

In light of the above-discussed authority, we conclude the drive-by shooting special circumstance (§ 190.2, subd. (a)(21)) is not unconstitutional.

H. Cruel and Unusual Punishment

Defendant contends the mandatory LWOP term imposed constituted cruel and unusual punishment in violation of the Eighth Amendment because he was 18 years old when he committed the murder. Defendant contends that the trial court should have had the discretion to consider his age “and whether that age was a sufficiently mitigating factor to warrant an opportunity to seek parole many years down the road.”

In Graham v. Florida (2010) 560 U.S. 48, 74-75 (Graham), the United States Supreme Court held that the Eighth Amendment prohibits imposition of a life without the possibility of parole sentence for juvenile nonhomicide offenders. Graham recognized that such a sentence is especially harsh for a juvenile offender who will spend more years and a greater percentage of his or her life in prison than a similarly sentenced adult. (Graham,supra, at p. 70.) Graham concluded that a nonhomicide juvenile offender is entitled to a sentence that provides “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” (Id. at p. 75.) “A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” (Id. at p. 82.)

Two years later, the United States Supreme Court ruled that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” (Miller v. Alabama (2012) 567 U.S. 460 (Miller).) In Miller, the court explained that its prior cases, including Graham, had “establish[ed] that children are constitutionally different from adults for purposes of sentencing.” (Miller, supra, at p. 471.) Specifically, “juveniles have diminished culpability and greater prospects for reform,” making them “ ‘less deserving of the most severe punishments.’ ” (Ibid.)

The Miller court summarized its holding as follows: “Mandatory life without parole for a juvenile precludes consideration of his [or her] chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him [or her]—and from which he [or she] cannot usually extricate himself [or herself]—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his [or her] participation in the conduct and the way familial and peer pressures may have affected him [or her]. Indeed, it ignores that he [or she] might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his [or her] inability to deal with police officers or prosecutors (including on a plea agreement) or his [or her] incapacity to assist his [or her] own attorneys. [Citations.] And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.” (Miller, supra, 567 U.S. at pp. 477-478.)

The Miller court indicated it believed that LWOP sentences for juveniles would be “uncommon” and limited to “ ‘the rare juvenile offender whose crime reflects irreparable corruption.’ [Citations.]” (Miller, supra, 567 U.S. at pp. 479-480.) The court specified that before such a sentence is imposed on a juvenile in a homicide case, the sentencing court must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” (Id. at p. 480, fn. omitted.)

Defendant argues “there is no reason why” the Miller rule “should cease to operate at the moment a defendant turns 18.” He also points out that if no special circumstance allegation had been charged and found true, he would have received an indeterminate life sentence and a parole hearing after 25 years. (See § 3051.)

The appellate court in People v. Argeta (2012) 210 Cal.App.4th 1478 (Argeta) addressed a similar argument. In Argeta, the defendant committed his crimes—a murder and five attempted murders—five months after his 18th birthday. (Id. at p. 1482.) The Argeta defendant contended that “the rationale applicable to the sentencing of juveniles should apply to him,” but the court disagreed, noting that the United States Supreme Court had rejected similar arguments in Roper v. Simmons (2005) 543 U.S. 551 (Roper) and Graham. (Argeta, supra, at p. 1482.)

In Roper, the court observed: “Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach.” (Roper, supra, 543 U.S. at p. 574.) However, the Roper court continued, “a line must be drawn,” and “[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood.” (Ibid.) The Argeta court further observed: “Making an exception for a defendant who committed a crime just five months past his [or her] 18th birthday opens the door for the next defendant who is only six months into adulthood. Such arguments would have no logical end, and so a line must be drawn at some point.” (Argeta, supra, 210 Cal.App.4th at p. 1482.)

Because the age of 18 is “the line the high court has drawn in its Eighth Amendment jurisprudence” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1380) and because we are required to follow United States Supreme Court decisions on the Eighth Amendment (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we reject defendant’s contention that the mandatory imposition of LWOP terms for defendant’s special circumstance murders constituted cruel and unusual punishment.

IV. Disposition

The judgment is modified to stay the two-year term imposed for count 2 (Pen. Code, § 186.22, subd. (a)) pursuant to Penal Code section 654. As modified, the judgment is affirmed.

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Bamattre-Manoukian, J.

WE CONCUR:

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ELIA, ACTING P.J.

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MIHARA, J.

People v. Camacho

H043233

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Cummings was abrogated by People v. Merritt (2017) 2 Cal.5th 819, 821-822 on the issue of whether “a harmless error analysis may be applied to instructional error which withdraws from jury consideration substantially all of the elements of an offense.” (See Cummings, supra, 4 Cal.4th at p. 1315.)

[3] These claims of prosecutorial misconduct were also the basis for a mistrial motion defendant made in the trial court.

[4] “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).)

[5] “[A]ny murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.” (§ 189.)

[6] “The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death.” (§ 190.2, subd. (a)(21).)

Description

A jury convicted defendant Bernardo Camacho of first degree murder (Pen. Code, § 187, subd. (a); count 1) and active participation in a criminal street gang (§ 186.22, subd. (a); count 2). As to the murder, the jury found true two special circumstances: that the murder was intentional and perpetrated by means of a drive-by shooting (§ 190, subd. (a)(21)) and that defendant intentionally killed the victim while defendant was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang (id., subd. (a)(22)). The jury also found true an allegation that defendant committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(5)) and an allegation that in the commission of the murder defendant personally discharged a firearm causing death (§ 12022.53, subd. (d)). Defendant admitted that he committed the crimes while on bail for another felony offense (§ 12022.1, subd. (b)). The trial cour